Jones v. State

RODOWSKY, Judge. The petitioner, George Jones (Jones), challenges his enhanced sentence as a three time offender under the drug laws. He asserts that the State failed to prove a predicate for enhanced punishment, namely, that he had served at least 180 days of a term of confinement imposed as the sentence for one of the predicate convictions. Two issues are presented. 1.

Did the trial court and the Court of Special Appeals err in concluding that the burden of going forward with the evidence shifted to Jones to prove that he had not served a minimum of 180 days when the State proved that Jones had been sentenced to serve one year on one of the predicate convictions? 2. Even if the lower courts erred, was there sufficient evidence in the record before the sentencing court to support enhanced punishment, so that this case may be remanded for further sentencing proceedings under the enhanced punishment provision? ³⁵ The statute involved here is Md.Code (1957, 1987 Repl. Vol., 1990 Cum.Supp.), Art. 27, § 286(d), dealing with controlled dangerous substances. Subsection (d) reads in relevant part: “(d)(1) Any person who has been convicted on 2 separate occasions under subsection (b)(1) or subsection (b)(2) of this section ... or any combination of these offenses, where the convictions do not arise from a single incident, and who has served at least 1 term of confinement of at least 180 days in a correctional institution as a result of a conviction of a previous violation of this section ... shall be sentenced, on being convicted a third time under subsection (b)(1) or subsection (b)(2) of this section ... to imprisonment for the term allowed by law, but, in any event, not less than 25 years. “(2) Neither the sentence required under paragraph (1) of this subsection nor any part of it may be suspended, and the person may not be eligible for parole except in accordance with Article 31B, § 11 of the Code. “(3) A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding offense.” Jones was charged, in a post-arrest statement of charges of September 12, 1985, and, later, by indictment filed on November 22, 1985, in the Circuit Court for Baltimore City, with various controlled dangerous substances offenses.

All of these offenses were alleged to have taken place on September 12, 1985, at 5507 Sarril Road. They included possession of cocaine with the intent to distribute. Jones pleaded guilty to the latter charge on May 25, 1987. Sentencing was deferred at that time.

Jones was also charged by indictment in the Circuit Court for Baltimore City with various controlled dangerous substances offenses alleged to have taken place on July 24, 1986, at 1745 North Castle Street, and including possession of heroin with the intent to distribute. On June 1, 1987, Jones pleaded guilty to the 1986 offense involving heroin, ³⁶ and sentencing was held at that time for that offense and the 1985 offense. Jones was sentenced on the 1985 cocaine offense as follows: “Fifteen (15) years [in the custody of the Division of Correction] all but one (1) year is suspended dating from 6-8-87. Work release recommended.

Credit to be given for 17 days time served. Upon release 5 years supervised probation. Pay costs to sheriff within 6 months after release.” For the 1986 offense Jones was placed on probation for five years, beginning when the period of probation imposed on the 1985 offense began. On July 13, 1988, Jones was arrested in the 1700 block of North Duncan Street in Baltimore City.

He was subsequently charged by criminal information with possession of cocaine on that occasion, with the intent to distribute. A jury in the Circuit Court for Baltimore City found Jones guilty of that charge. The sentencing on that third conviction is the subject of this appeal. At the sentencing hearing the State introduced the files of the Circuit Court for Baltimore City in the causes involving the 1985 cocaine offense and the 1986 heroin offense.

No records from the Division of Correction were introduced, as they might have been under Md.Code (1989 Repl.Vol.), § 10-204 of the Courts and Judicial Proceedings Article. Defense counsel argued that the State failed to show that Jones had “served at least 1 term of confinement of at least 180 days in a correctional institution.” § 286(d)(1). The sentencing judge ruled that the § 286(d)(1) penalty was triggered by a sentence of “unsuspended time” in excess of 180 days, because such a sentence demonstrated the seriousness of the prior offense. The circuit judge further ruled thát the burden then shifted to Jones to show that he had not served at least 180 days.

Defense counsel replied that the defense was not prepared to show that and did not have any records of incarceration. The court sentenced ³⁷ Jones to twenty-five years, the minimum penalty under § 286(d)(1). The Court of Special Appeals affirmed in an unreported opinion that adopted the reasoning of the sentencing judge. We granted Jones’s petition for certiorari.

I Where the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment. See Bowman v. State, 314 Md. 725, 733 , 552 A.2d 1303, 1306-07 (1989); Ford v. State, 73 Md.App. 391, 400-06 , 534 A.2d 992, 996-99 (1988); Irby v. State, 66 Md.App. 580, 584-85 , 505 A.2d 552, 554 (1986), cert. denied, 308 Md. 270 , 518 A.2d 732 (1987); Teeter v. State, 65 Md.App. 105, 113-14 , 499 A.2d 503, 507 (1985), cert. denied, 305 Md. 245 , 503 A.2d 253 (1986); Sullivan v. State, 29 Md.App. 622, 630-32 , 349 A.2d 663, 668-69 (1976). Here, the fact that Jones had been sentenced to one year of “unsuspended time” does not satisfy the State’s burden. Jones’s sentence of confinement for one year meant that he was at least eligible for consideration for parole after he had served three months of that sentence, excluding any credits against the sentence.

See Md.Code (1957, 1990 Repl.Vol.), Art. 41, § 4-516(a); Md.Regs.Code tit. 12, § 08.-01.17A(1) (1980). 1 The possibility of parole when eligible is enhanced by the fact that the sentencing judge gave Jones one week to report for service of his sentence